Earlier today, FCC head Tom Wheeler revealed the skeleton of a plan to bring back net neutrality, calling for the commission to consider rules that would replace the now-gutted Open Internet Order. Wheeler has chosen to color within the lines of January's court ruling, building on some limited authority the FCC now officially holds under a rule called section 706. As before, the policy is meant to make sure wired broadband carriers can't block or discriminate against legal services, and that they disclose their network traffic shaping policies publicly. This announcement has been awaited for weeks. Reactions from telecoms, members of Congress, and activists started coming in immediately, and they're mixed at best.
Net neutrality's strongest supporters have expressed disappointment that the FCC isn't pursuing the most decisive method of regulating ISPs: putting them in the same "common carrier" category as phone companies. Wheeler has said he's not ruling that option out, but the FCC isn't actively working on it. "The FCC can't protect free speech and prevent discrimination under the so-called Section 706 authority discussed in today's announcement," said Free Press president Craig Aaron, calling for the FCC to reclassify broadband providers instead. "Nothing in today's announcement forecloses this better path, but the FCC's reluctance to take it is baffling and short-sighted."
"The FCC's reluctance ... is baffling and short-sighted."
Public Knowledge, another active net neutrality proponent, was more measured. "We are pleased that the FCC plans to protect Internet openness, promote transparency, encourage municipal broadband, and achieve other goals," said president Gene Kimmelman. "While skeptical that the FCC's initial focus on section 706 will yield meaningful results, we are encouraged to see that the FCC plans to keep its 'reclassification' proceeding open." In Congress, Senator Al Franken (D-MN) expressed similar doubts. "I am pleased that FCC Chairman Tom Wheeler indicated that he's committed to preserving net neutrality. But it's critically important that the approach the FCC takes achieves that goal, and there are some real questions about whether the path they've chosen will actually accomplish that."
If the FCC's net neutrality stance is timid to some, it's an ominous overture to others. Rep. Fred Upton (R-MI) and Greg Walden (R-OR), respective chairs of the House Energy and Commerce Committee and the Communications and Technology Subcommittee, denounced the Obama-appointed Wheeler's "furious pursuit of these harmful policies to put government in charge of the web." Rep. Marsha Blackburn (R-TN), vice chair of the Energy and Commerce Committee, went further. "Since it is clear that FCC Chairman Wheeler is on a crusade to implement these socialistic regulations, I will soon be introducing legislation to block these efforts and protect Internet freedom for consumers," she said. Ajit Pai, another FCC commissioner who opposes Wheeler's plan, referred to the "specter" of harsh reclassification hovering in the background of the debate.
"Chairman Wheeler is on a crusade to implement these socialistic regulations."
Broadband provider responses are even more nebulous than Wheeler's plan. Verizon, the company responsible for getting the rules struck down in the first place, quickly headed off any questions with a non-statement: "Verizon remains committed to an open Internet that provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want." AT&T said it would "participate constructively" in making a new plan. But it made clear that it wants a light touch and no attempt to reclassify carriers. "We believe the FCC possesses sufficient authority under section 706 to preserve Internet freedom and openness, and that it can do so without over-regulation."
Comcast supported the Open Internet rules in their original incarnation, and that's not changing: it said Wheeler had taken a "thoughtful approach" with his announcement. After being caught throttling Netflix in 2008, Comcast agreed to abide by Open Internet rules, and its deal won't run out until 2018. So as long as Wheeler doesn't impose any new conditions, a new net neutrality framework won't change much for it in the near future.
Not only will the FCC likely not add conditions, a framework that uses section 706 — meant to encourage broadband adoption — won't have the same bite as the old rules. If ISPs aren't common carriers, they can't be bound by common carrier-like policies, so the agency will need to tread carefully as it attempts to stop broadband providers from discriminating against certain kinds of data. Wheeler says he'll "carefully consider" how to proceed, and the descriptions sound more like best practices than hard and fast bans.
None of this is to say we know what the FCC will come up with. Not a word of policy has been written, and all today's announcement really does is confirm that the FCC won't be fighting the court's decision from January and is launching a period for public comment and proposal-making. We don't even know whether rules made under section 706 can have any effect without running afoul of common carrier rules. If they don't — and it's quite likely that's the case — the FCC will either have to start World War III by reclassifying ISPs or turn its net neutrality rules into net neutrality suggestions.